219 F.3d 37 (1st Cir.

2000)

UNITED STATES, Appellee,

v.
WALDEMAR GONZALEZ-VAZQUEZ, Defendant,
Appellant.
UNITED STATES, Appellee,
v.
HECTOR HERNANDEZ-NEGRON, Defendant, Appellant.
No. 98-2108, 98-2109

United States Court of Appeals For the First Circuit

Heard March 8, 2000.
Decided July 18, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF PUERTO RICO. Hon. Hector M. Laffitte, U.S.
District Judge.[Copyrighted Material Omitted][Copyrighted Material
Omitted]
Lydia Lizarribar-Masini for appellant Gonzalez-Vazquez.
Mauricio Hernandez Arroyo for appellant Hernandez-Negron.
Antonio A. Bazan, Assistant United States Attorney, with
whomGuillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, and Camille
Velez-Rive, Assistant United States Attorney, were on brief, for the
United States.
Before: Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez,
Circuit Judge.
LIPEZ, Circuit Judge.

Hector Hernandez-Negron and Waldemar Gonzalez-Vazquez appeal from their

convictions following a trial for conspiracy to distribute controlled substances
and aiding and abetting the distribution of controlled substances within one

thousand feet of a school. Hernandez claims that he received ineffective

assistance of counsel when his trial attorney failed to accept a plea bargain as
instructed, and that the government then violated his constitutional rights by
withdrawing the original plea offer and offering a new "package deal" plea
bargain that Hernandez could only accept if his two remaining co-defendants
also pled guilty. Hernandez also argues that the district court misapplied
U.S.S.G. 3B1.1 in finding him to be a "manager or supervisor" of the criminal
activity. Gonzalez challenges the sufficiency of the evidence, arguing that it
was based solely on testimony from the government's confidential informant.
We reject these arguments (as well as several arguments concerning evidentiary
errors) and affirm the convictions and sentence of Hernandez and the
convictions of Gonzalez.
I. Background
2

We recite the facts in the light most favorable to the jury's verdict, consistent
with record support. See United Statesv. Hughes, 211 F.3d 676, 679 (1st Cir.
2000). In January 1995, FBI Agent Michael Anderson learned that an
individual named Angel Gonzalez-Ortiz, a.k.a. "Pichi," headed a gang that
distributed illegal drugs at the Luis Pales Matos housing project in Guayama,
Puerto Rico. The distribution point was within 1000 feet of the Pales Matos
Public School. Anderson opened an investigation, assisted by Agent Jose
Tirado, a Puerto Rico Police officer who had performed some initial
investigation of the drug ring. Anderson met with a confidential informant
("CI"), Ramonita Masso-Nieves, who had assisted Agent Tirado in his initial
investigation. To corroborate the information provided by Masso, Anderson set
up two video surveillance cameras at the drug point, recording numerous drug
deals.

In February 1996 a Grand Jury returned a two-count indictment against twentytwo individuals, charging a conspiracy to distribute controlled substances in
violation of 21 U.S.C 841(a)(1) & 846 and aiding and abetting the
distribution of controlled substances within 1,000 feet of a school in violation
of 21 U.S.C. 841(a)(1) & 860 and 18 U.S.C. 2. Shortly after the
indictments, the government offered plea bargains to all of the co-defendants.
Nineteen of the twenty-two co-defendants accepted a plea bargain; Hernandez,
Gonzalez, and Louis Bonano-Serrano went to trial.

The jury trial lasted seven days. Through surveillance videotapes, the jury saw
drug transactions involving many of the individuals who had pled guilty.
Hernandez,Gonzalez, and Bonano, however, did not appear in these videos.
The government attempted to link the defendants to the conspiracy through the

testimony of Masso and Agent Tirado. Masso testified that, from her experience
working at the drug point, she knew that Hernandez, Gonzalez, and Bonano
were the "guilterro" or "triggermen" for Pichi, insuring that the kingpin and his
interests were protected. She further testified that Gonzalez had provided drugs
to the distribution point and that Hernandez was second in command, after
Pichi himself. She also testified that on one occasion Hernandez had used her
apartment to package drugs, and that she called Agent Tirado to inform him.
Agent Tirado confirmed this, testifying that upon arriving at Masso's
apartment, he found Hernandez and two others sitting around a table packaging
a powder that a feld test indicated was cocaine. A chemist testified that later
laboratory tests also indicated that the substance was cocaine. Tirado also
testified thatwhen he stopped Gonzalez for a traffic violation he found a bag
containing drug packaging paraphernalia.
5

Gonzalez and Bonano did not offer defense witnesses. Hernandez offered one
witness: a co-conspirator who had pled guilty, and who testified that Hernandez
had been with him when Agent Tirado came to Masso's apartment and found
them packaging drugs. The jury found Hernandez and Gonzalez guilty on both
counts. Bonano was acquitted. Hernandez was sentenced to 450 months and
Gonzalez was sentenced to 360 months.

We evaluate Hernandez's claims first, turn then to the issues raised by

Gonzalez, and finally address an issue raised by both appellants.
II. Hernandez
A. The Plea Bargain

Hernandez raises two arguments related to his unsuccessful efforts to obtain a

plea agreement from the government. Like all of the twenty-two original codefendants, Hernandez was offered a plea agreement after he was indicted in
1996. Nineteen of the co-defendants accepted the plea bargain and were
sentenced to between eighteen and forty-six months. Hernandez, however,
deferred a decision on the plea offer while preparing a motion to dismiss. After
that motion was denied, Hernandez moved to compel the government to honor
the initial plea agreement. The government responded that there had been no
agreement. Rather, there had only been an offer that Hernandez had not
accepted and that was now withdrawn. The government further stated that it
had advised Hernandez that "trial preparation in this case would be the same
against one or against any of the three co-defendants."

1. Ineffective Assistance of Counsel

8

Hernandez argues that he received ineffective assistance of counsel because his

trial counsel mishandled the plea bargaining process by grossly
underestimating Hernandez's potential sentence if the case were taken to trial,
having stated that Hernandez could face a maximum of a ten year prison term
when in reality he faced a life sentence (and in fact received thirty-seven and a
half years). Additionally, Hernandez asserts that his trial counsel failed to
accept the plea offer as instructed, allowing the offer to lapse. Hernandez
asserts that he went so far as to call his sisters in the United States to enlist their
help in bypassing his attorney and communicating to the government that he
wanted to accept the plea bargain.

If true, Hernandez's claims would present a serious ineffective assistance

question. See Boria v. Keane, 99 F.3d 492, 496 (1st Cir. 1996) ("A defense
lawyer in a criminal case has the duty to advise his client fully on whether a
particular plea to a charge appears to be desirable."); id. at 496-97 ("The
decision whether to plead guilty or contest a criminal charge . . . must
ultimately be left to the client's wishes."). However, "[w]e have held witha
regularity bordering on the monotonous that fact-specific claims of ineffective
assistance cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by, the trial court."
United States v. Berros, 132 F.3d 834, 841 (1st Cir. 1998) (quoting United
States v. Mala, 7 F.3d 1058, 1062-63 (1st Cir. 1993)); see also United States v.
McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States v. Hunnewell, 891 F.2d
955, 956 (1st Cir. 1989); United States v. Costa, 890 F.2d 480, 482-83 (1st Cir.
1989).

10

While there is an exception to this bar in cases "where the critical facts are not
genuinely in dispute and the record is sufficiently developed to allow reasoned
consideration of the ineffective assistance claim," United States v. SoldevilaLopez, 17 F.3d 480, 485 (1st Cir. 1994), Hernandez's claims require the
resolution of factual disputes. We thus follow our usual practice of dismissing
this portion of the appeal without prejudice to Hernandez raising the ineffective
assistance claim in a 28 U.S.C. 2255 petition. See id.

11

We note, though, that this seems to be one of the "rare section 2255 cases in
which the appointment of counsel [would be] warranted." Mala, 7 F.3d at 1064.
As in Mala, the allegation of ineffectiveness is serious and the record provides
some support for the defendant's claim. Under the initial plea agreement that
Hernandez's trial counsel allegedly refused to accept, Hernandez would have
likely received forty-six months, given a reduction for acceptance of

responsibility and the government's willingness to drop the aiding and abetting
count and stipulate that Hernandez was only responsible for a fraction of the
drugs. Both at the sentencing hearing and in an affidavit filed on appeal,
Hernandez stated that he had instructed his trial attorney to accept the plea
bargain because it was much less severe than the twenty years he was serving
on Puerto Rico charges relating to his involvement in the conspiracy.1 After
trial, Hernandez received a sentence of thirty-seven and half years--almost ten
times the sentence he would have likely received pursuant to the proposed plea
agreement. Moreover, the court ruled that the federal sentence could not be
served concurrently with the related twenty year Puerto Rico sentence because
the local courts were "too lenient." We therefore "direct the district court, if
appellant petitions for section 2255 relief and demonstrates continued financial
eligibility, to appoint counsel for him under 18 U.S.C. 3006A(a)(2)(B)." Id.
2. The "Package Deal" Objection
12

Hernandez argues that the government violated his constitutional rights by

withdrawing the original plea offer and replacing it with a "package deal" plea
that Hernandez could only accept if his two remaining co-defendants also pled
guilty. Because his co-defendants wanted a jury trial, Hernandez says he was
unable to accept the agreement and was thus "forced" to go to trial.

13

Hernandez's objections have no merit. First, the government was under no

obligation to leave its original plea offer open. At the sentencing hearing,
Hernandez's counsel conceded that he had never accepted the initial plea offer,
instead hoping for success on a motion to dismiss. He further conceded that
"while we were waiting for disposition of those motions . . . at that point,
between all that, the government withdrew." It is axiomatic that a prosecutor
may withdraw a plea offer before a defendant accepts it. See United States v.
Papaleo, 853 F.2d 16, 19-20 (1st Cir. 1988); see also Mabry v. Johnson, 467
U.S. 504, 507 (1984).

14

Given that the government was entitled to withdraw the initial plea offer, the
question becomes whether the government could offer a new "package deal"
plea bargain that would be available to Hernandez only if his two co-defendants
also gave up their right to a jury trial. Assuming that a "package deal" offer was
made2 , it would not violate Hernandez's constitutional rights. Although we have
expressed concerns with package deal plea agreements, those concerns have no
application here. The difficulty with "package deal" plea offers is not the fear
that a defendant, like Hernandez, will be "forced" to go to trial. Rather, it is the
opposite fear that the defendant will involuntarily waive his right to a jury trial
because his codefendants will coerce him to accept the plea agreement.

SeeUnited States v. Martnez-Molina, 64 F.3d 719, 732 (1st Cir. 1995). We have
held that "[p]ackage plea deals therefore impose special obligations: the
prosecutor must alert the district court to the fact that codefendants are entering
a package deal, and the district court must carefully ascertain the voluntariness
of each defendant's plea." Id. at 733 (internal citations omitted) (vacating
package deal guilty plea when district court did not determine if it was
voluntary); see also United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir. 1987)
(vacating package deal guilty plea when government did not inform trial court
about nature of agreement).
15

The "voluntariness" concern that the defendant may have been coerced into
giving up his right to go to trial obviously does not apply when the defendant
does go to trial. It is difficult, then, to understand the constitutional right at
stake here. While the "package deal" did limit Hernandez's ability to obtain a
plea bargain (since the other defendants would also be required to plead guilty),
the fact remains that "there is no constitutional right to plea bargain; the
prosecutor need not do so if he prefers to go to trial. It is a novel argument that
constitutional rights are infringed by trying the defendant rather than accepting
his plea of guilty." Weatherford v. Bursey, 429 U.S. 545, 561 (1977); see also
United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987) (rejecting
defendant's claim that package deal plea was unconstitutional because it
"forced" him to go to trial).

16

B. Upward Adjustment for Supervisor / Manager Role

17

Section 3B1.1(b) of the United States Sentencing Guidelines calls for a three
point increase to the base offense level "[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive." U.S.S.G. 3B1.1(b); see
also United States v. Joyce, 70 F.3d 679, 682 (1st Cir. 1995). Hernandez claims
that the district court erred in ordering a two level upward adjustment pursuant
to 3B1.1(b) because he was not a "manager or supervisor." Since the
determination of whether a defendant played this aggravated role is fact
intensive, we will reverse a trial court's determination only if it is clearly
erroneous. See United States v. Shrader, 56 F.3d 288, 293 (1st Cir. 1995);
United States v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993).

18

As the district court noted at the sentencing hearing, Masso testified

thatHernandez was second in command at the drug point. Moreover, Hernandez
played a leadership role in arranging with Masso to use her apartment for drug
packaging. Thus, there was sufficient evidence for the district court to conclude
that the "defendant, in committing the crime, exercised control over, or was

otherwise responsible for overseeing the activities of, at least one other person."
United States v. Cali, 87 F.3d 571, 578 (1st Cir. 1996)(quoting United States v.
Savoie, 985 F.2d 612, 616 (1st Cir. 1993)). As such, the imposition of
supervisory liability under 3B1.1(b) was not clearly erroneous.
19

There is one other issue related to the 3B1.1(b) determination. Although the
court found that 3B1.1(b) applied, it decided to "give [Hernandez] a break on
this one" and increase the offense by only two levels rather than the three called
for by the guideline. This was error. As we noted in United States v.Rostoff, 53
F.3d 398, 412-14 (1st Cir. 1995), 3 B1.1 sets forth a precise adjustment
scheme3 that cannot be modified by the district court. The Sentencing
Commission did not provide for a partial upward adjustment under 3B1.1, in
contrast to other provisions where the Commission authorized the sentencing
judge to select an intermediate adjustment. See, e.g., U.S.S.G. 2A2.2(b)(3)
(D), (E) (intermediate adjustment allowed for injuries considered to be
"between" specified categories of injuries); 3B1.2 (intermediate adjustment
allowed for mitigating role "falling between" minimal and minor participation).
Therefore, a court may not "forgo the three-level increase called for by
U.S.S.G. 3B1.1(b) and instead impose a two-level increase" when it finds
mitigating circumstances. United States v. Cotto, 979 F.2d 921, 922 (2d Cir.
1992); see also United States v. Kirkeby, 11 F.3d 777, 778-79 (8th Cir. 1993)
("A trial court's only options in cases involving a criminal activity with five or
more participants are, therefore, a four-level enhancement under 3B1.1(a), a
three-level enhancement under 3B1.1(b), or no enhancement at all . . . .").

20

Although the district court erred in adjusting Hernandez's offense by two levels
rather than three, the government did not cross-appeal. We therefore deem the
issue waived and affirm the sentence. See generally United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).

21

C. Limits on Hernandez's Cross-Examination of Tirado

22

Hernandez objects that the district court improperly limited his crossexamination of Jose Tirado, a Puerto Rico Police officer working (at the time of
the conspiracy) for the Drugs and Narcotics Division in the Guayama area.
Agent Tirado testified that acting on a tip from Masso, he obtained a warrant
and entered her apartment with Guayama officers Laboy Rolon and Juan
Rodrguez. Tirado stated that he found Hernandez and two of his co-conspirators
packaging a white powder, which field tests indicated was cocaine. The drugs
were seized and stored in Rodriguez's locker.
Hernandez wanted to cross-examine Tirado about allegations that Rodrguez and

23

Hernandez wanted to cross-examine Tirado about allegations that Rodrguez and

other Guayama area officers were corrupt. The district court ruled that while
questions on the chain of custody of the drugs would be allowed, "you cannot
benefit from somebody else's corruption, and it is immaterial to this case." The
court reasoned that the corruption was "immaterial" because Tirado himself
had never been accused of corruption and because the corruption of other
officers at the local level did not implicate the federal prosecution.

24

The Confrontation Clause of the Sixth Amendment secures a right to crossexamination in order to test "the believability of a witness and the truth of his
testimony." United States v. Carty, 993 F.2d 1005, 1009 (1st Cir. 1993). The
right to cross-examine, however, is not unlimited. When a witness's credibility
is at issue, the trial court may limit cross-examination as long as the court
allows "sufficient leeway to establish a reasonably complete picture of the
witness' veracity, bias, and motivation." United States v. Laboy-Delgado, 84
F.3d 22, 28 (1st Cir. 1996) (internal quotation marks omitted). "Confrontation
clause challenges are reviewed de novo to determine whether defense counsel
was afforded a reasonable opportunity to impeach adverse witnesses; once that
threshold is reached, the trial court's restrictions on the extent and manner of
cross-examination are reviewed only for abuse of discretion." United States v.
Balsam, 203 F.3d 72, 87 (1st Cir. 2000) (citing United States v. Gomes, 177
F.3d 76, 80 (1st Cir. 1999)).

25

The district court's unwillingness to allow Hernandez to question Tirado about

the corruption of other police officers did not prevent the jury from obtaining "a
reasonably complete picture of the witness' veracity, bias, and motivation."
Laboy-Delgado, 84 F.3d at 28 (emphasis added). While a magistrate judge's
pre-trial report adopted by the district court contained evidence that some
police officers (including Rodrguez) had behaved corruptly in other drug cases,
there was no allegation that Tirado was himself corrupt. Indeed, Tirado
provided the United States with information that helped implicate other corrupt
officers. Thus, any testimony tending to show that these other officers were
dishonest would not implicate Tirado's veracity, bias, and motivation. More
concretely, cross-examination that attacked Rodrguez's integrity would do
nothing to cast doubt on Tirado's claims that (1) he personally saw Hernandez
packaging a white powder, (2) he personally observed a field test indicating
that the white powder was cocaine, and (3) he recognized the drugs from the
laboratory as those seized from Hernandez.

26

Moreover, the district court did not completely bar Hernandez from questioning
Tirado about Rodrguez. Rather, the court allowed extensive questioning as to
how Rodrguez handled the evidence in this case, including the unusually
lengthy storage in Rodrguez's locker and the miscounting of the bags of drugs.

The district court "retains wide latitude to impose reasonable limits" on crossexamination in order to avoid confusion of the issues or extended discussion of
marginally relevant material. United Statesv. Twomey, 806 F.2d 1136, 1139
(1st Cir. 1986). Since Hernandez was unable to offer any evidence that
Rodrguez corruptly handled the case against Hernandez, it was not
unreasonable for the court to limit Hernandez to questioning Tirado about these
concrete factors relating to storage and quantification rather than allowing a
broad inquiry into the corruption of third party police officers who were not
appearing as witnesses.
III. Gonzalez
A. Sufficiency of Evidence
27

Gonzalez was convicted of conspiracy to distribute controlled substances, 21

U.S.C. 841(a)(1) & 846, and of aiding and abetting the distribution of
controlled substances within one thousand feet of a school, 21 U.S.C. 841(a)
(1) & 860 and 18 U.S.C. 2. The evidence tying him to the drug operation
came primarily from Masso, a paid government informant. Gonzalez does not
argue that the evidence, taken as a whole, was insufficient. Rather, Gonzalez
claims that "[t]he evidence, excluding Ramonita Masso, is legally insufficient
to support appellant's conviction." (emphasis added). We reject Gonzalez's
sufficiency challenge. His premise that Masso's testimony must be disregarded
as"not trustworthy" because of her informant status is unsupportable.

28

It is well-established that "the testimony of interested informants is not so

inherently unreliable that it must be excluded." United States v. Cresta, 825
F.2d 538, 546 (1st Cir. 1987). A conviction may be based solely on the
uncorroborated testimony of a confidential informant "so long as the testimony
is not incredible or insubstantial on its face." United States v.Ciocca, 106 F.3d
1079, 1084 (1st Cir. 1997) (quoting United Statesv. Andujar, 49 F.3d 16, 21
(1st Cir. 1995)). While the credibility of an interested informant can be
challenged, the challenge should ordinarily be directed to the jury, not the
appellate court. Thus, when an informant is paid a contingent fee, "the jury
must be informed of the exact nature of the contingency agreement; the defense
counsel must be permitted to cross-examine the witness about the agreement;
and the jury must be specifically instructed to weigh the witness' testimony
with care." Cresta, 825 F.2d at 546; see also United States v. Fernandez, 145
F.3d 59, 62 (1st Cir. 1998) (plain error review when defendant does not request
the "special care" instruction). When these "established safeguards,"id., are
met, we will not disturb a conviction based on the testimony of an interested
informant.

29

Masso's testimony was certainly not "incredible or insubstantial on its face."

Ciocca, 106 F.3d at 1084. She provided detailed descriptions of Gonzalez's
participation in the drug distribution operation. Gonzalez was allowed to--and
did--vigorously cross-examine Masso, suggesting that her testimony was
untruthful. Masso admitted that she had started working at the drug point
before she made a decision to serve as an informant. Gonzalez also brought out
inconsistencies between Masso's trial testimony--where she identified Gonzalez
as a "triggerman" and recalled an incident when he delivered drugs to the
distribution point--and her investigative interviews with Agent Tirado and
Agent Anderson. During the closing, Gonzalez argued that Masso was now
lying about Gonzalez's role due to compensation she had acknowledged on
direct: $10,000 for expenses, $10,000 for her availability, and the promise of a
"bonus" upon completion of the trial, regardless of its result. Finally, the trial
court instructed the jury to weigh Masso's testimony with care.4 Despite this
admonition, the jury rejected Gonzalez's defense that Masso was lying and
voted to convict. We have no reason to disturb the verdict on sufficiency
grounds.
B. The Traffic Stop

30

Gonzalez argues that the district court erred in failing to strike Agent Tirado's
testimony that he saw Gonzalez with drug paraphernalia as he left the
distribution point. Tirado testified that on March 4, 1994, he stopped Gonzalez
for traffic violations as he left the housing project on his motorcycle. A
consensual search of Gonzalez's sports bag revealed a scale, a sieve, plastic
containers, and pieces of aluminum--items Tirado recognized as frequently
used to process controlled substances. When Tirado told the other officers,
"Look what this guy has in here," Gonzalez began to run.

31

After cross-examination of Agent Tirado was complete, Gonzalez moved to

strike the testimony concerning the traffic stop on the grounds that the
evidence was irrelevant to the conspiracy charges and, even if relevant, unduly
prejudicial underFed. R. Evid. 403. The trial court denied the motion to strike,
stating,inter alia, that the evidence was relevant (and more probative than
prejudicial) because "he was at the drug point within the time frame of the
conspiracy and carrying paraphernalia is consistent with drug trafficking." We
review evidentiary rulings for abuse of discretion. United States v. Rodrguez,
162 F.3d 135, 142 (1st Cir. 1998).

32

The evidence was plainly admissible as relevant evidence of the conspiracy:

combined with the testimony of Masso, it suggested that Gonzalez was a
member of the drug ring at the housing project. Likewise, "it is only unfair

prejudice, not prejudice per se, against which Rule 403 guards." United States
v.Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995). "Unfairly prejudicial
evidence is evidence having some quality that moves the jury to attribute to it
excessive probative value. It is evidence that 'triggers [the] mainsprings of
human action [in such a way as to] cause a jury to base its decision on
something other than the established proposition in the case.'" United States v.
Currier, 836 F.2d 11, 18 (1st Cir. 1987) (quoting 1 Weinstein's Evidence
403[03], 36-39 (1986)). The items Gonzalez was carrying did not create a
danger of such unfair prejudice. Rather, a reasonable jury could consider the
testimony concerning these items as circumstantial evidence of Gonzalez's
involvement in the conspiracy.
IV. Hernandez and Gonzalez
33

Hernandez and Gonzalez argue that the district court erred in admitting the
testimony of Puerto Rico Police Officer Gregorio Duran regarding
investigations and surveillance at the Luis Pales Matos housing project. Duran
testified that while investigating drug distribution at the housing project he
observed Hernandez, Gonzalez, and Bonano acting as Pichi's bodyguards.
Cross-examination, however, revealed that Duran was unsure precisely when
he saw the co-defendants. Since some of Duran's observations were made
before the charged conspiracy, he could not be certain that he had seen the
defendants within the time frame of the conspiracy. Surveillance reports that
could have been used to clarify when Duran saw the defendants, or to impeach
his testimony if the defendants were not mentioned in them, could not be
obtained because they were stored in a Puerto Rico facility that OSHA had
declared highly contaminated.

34

In response, Hernandez and Gonzalez requested a mistrial. Although arguing

that no mistrial was necessary, the government suggested to the district court
that it might strike Agent Duran's testimony and issue a curative instruction.
The trial court reasoned that there was no basis for a mistrial--or even for
striking the testimony--because 1) the reports were unavailable to the
government, 2) there had been no misconduct, and 3) the defendants "have had
the chance to cross-examine this witness and really attack his credibility on the
grounds that he did not observe the matters within the time frame."
Nonetheless, the court agreed to strike the testimony and issue the cautionary
instruction because "the Government wants to do that." On appeal, Gonzalez
and Hernandez claim that Agent Duran's testimony impermissibly bolstered
Masso's testimony. Given that Duran's testimony was struck, the only possible
legal argument is that the remedy of striking the testimony and issuing a
cautionary instruction was insufficient to cure the harms caused by the

allegedly inadmissible testimony and that the mistrial the defendants sought
should have been granted.
35

We find no error in the trial court's denial of a mistrial, much less the manifest
abuse of discretion required for reversal. See United States v. Rullan-Rivera, 60
F.3d 16, 18 (1st Cir. 1995) ("Mistrial is a last resort, to be employed only if the
demonstrated harm can be cured by no less drastic means, such as a
contemporaneous jury instruction."). Even assuming that Agent Duran's
testimony was inadmissible(an assumption we make solely for the sake of
argument), the district court's response--striking the testimony and issuing a
curative instruction--was certainly adequate. The court told the jury:

36

Now, the testimony of Agent Gregorio Duran Malave concerning his

observations that he saw the three defendants providing security service, body
guarding 'Pichi', well I am ordering that testimony to be stricken from the
record, and I am instructing you to erase it from your mind entirely, the way I
told you, the way you swore to obey my instructions and follow the law. So
again, I repeat, disregard that testimony , that portion of the testimony, that
portion, entirely from your minds.

37

We presume that juries follow instructions. See United States v. Woodward,

149 F.3d 46, 73 (1st Cir. 1998). While this presumption may be rebutted "on a
sufficient showing that the offending testimony reasonably could not have been
ignored and that serious prejudice likely resulted," Rullan-Rivera, 60 F.3d at
18, no such showing has been made here. Indeed, Agent Duran's stricken
testimony also implicated co-defendant Bonano as a bodyguard for Pichi. The
jury, however, acquitted Bonano, indicating that they were not unduly
influenced by the testimony.
V. Conclusion

38

For the reasons stated herein, we affirm the convictions and sentences.

Notes:
1

Three of Hernandez's relatives have also filed affidavits stating that Hernandez
telephoned two of his sisters (who lived in Ohio) to enlist their help in
bypassing his attorney and telling the government directly that he wanted to
accept the offer.

While the record is not entirely clear, it suggests that the government did offer
Hernandez a "package deal." In response to Hernandez's motion to compel the
government to accept its original plea offer, the government stated that "
[Hernandez's] [c]ounsel was advised in no uncertain terms that . . . trial
preparation in this case would be the same against one or against any of the
three co-defendants." Moreover, when Hernandez informed the trial court that
the government had offered a "package deal" arrangement, the trial court seems
to have accepted this characterization in deciding that such an arrangement was
unproblematic, and the government did nothing to challenge this
characterization.

If a crime involves "five or more participants or was otherwise extensive," the

Guidelines provide for a four level enhancement for an "organizer or leader,"
U.S.S.G. 3B1.1(a), and three levels for a "manager or supervisor," U.S.S.G
3B1.1(b). For criminal activity on a smaller scale, the Guidelines provide for a
two level upward adjustment for all four roles--organizers, leaders, managers or
supervisors. See U.S.S.G. 3B1.1(c).

In addition to receiving a general instruction on witness credibility, the jury was

advised that it should consider whether Masso's pre-trial statements were
consistent with her testimony at trial and that the testimony of "an informer for
pay" must "always be examined and weighed with greater care and caution than
the testimony of an ordinary witness." We assume for the sake of argument that
Gonzalez properly requested these instructions, though the record is unclear.
See Fernandez, 145 F.3d at 62 (plain error review if "special care" instructions
not requested).